Author Archives: jaimerhamilton

Apples and Oranges

And so this evening my eye fell upon a piece in The Spectator Online by Ross Clark, you can read it by clicking on this link. My attention was drawn to the article by the howls of wounded lawyers taking to Twitter to say “pah” or to invite Mr Clark to spend a day with them to see how the legal system really works. So I was forewarned lawyers would come out of the article badly. I had no idea how badly the authors of comment pieces in The Spectator would also fare.

The title is “Why MPs should not stop legal aid reform”. The catalyst for the piece is the recent pronouncement of Nigel Evans MP that legal aid reform had gone too far, something he discovered for himself when accused of a crime. The premise of the piece – well that may take a little more unraveling, but I will give it a go. Mr Clark seems to be suggesting that the law is an industry which is resistant to change and operates as a conspiracy to make it too complicated for the layman to represent themselves. He argues that reform is needed to simplify the law and procedure. So far so good (although the I confess to having a wry smile at the  use of the word “arcane” in a plea for simplification) but I cannot help but feel this is not foreshadowed by the title or by the catalyst in the iniquity of acquitted defendants who do not qualify for legal aid having to fund their defence.

The headline lays down the gauntlet as to why MPs should not stop legal aid reform, regurgitates some figures about the cost of legal aid (and more of that in a moment) and then goes on to propose reform to the legal system. It fails singularly to deal with the issues raised by the case of Nigel Evans. It does not deal with the issue of those denied access to justice whilst the legal system remains as it is but funding is denied to so many. It fails completely to deal with any issue about the provision of legal aid. It is the equivalent of me standing before a jury to do my closing speech and delivering a plea in mitigation.

The complaint is made that complex language and procedures keep the layman bewildered by the legal system and that the answer is reform to make it clearer so that people like Nigel Evans can represent themselves. This argument always ignores the fact that most lawyers bring more to the case than their knowledge of law and procedure. We bring skills in litigation and advocacy that go way beyond what is written in a statute or contained within the law reports. Thinking that if only we make the language less complex and the procedure less procedural we will open up law to non-lawyers equates to making us all pilots if only we stop calling it the altimeter and instead refer to the “how far we are off the ground” dial.

Time and time again both experience and academic study shows that lawyers can save an awful lot of time. One of the main things I do is act as a filter between what the client may think is relevant and what is actually relevant. I spend hour after hour agreeing issues and evidence with my opponent that someone without my experience and detachment would never agree.

That is not the only filter I provide. The law recognises that people charged with the sort of offences of which Nigel Evans was acquitted should NEVER be allowed to cross examine the complainant themselves. This is a law which is good. This is a law which benefits those who are the victims of such offending. It encourages reporting. It facilitates the complainant giving their evidence in the best way possible in the circumstances. So which reform would Mr Clark like to see where someone in Mr Evans’s position would be given the ability to cross examine their accuser? Not all in this position are innocent. You get very unpleasant individuals only too eager to exercise control over their partner through the witness box. I am a filter. I am a safeguard. A safeguard that legal aid reforms has now removed from many a family case. What a triumph.

And now the figures. This is depressingly familiar. Depressingly misleading. Depressingly inaccurate. The piece states

“A Council of Europe Report in 2014 – after the legal aid reforms began to take effect – calculated that UK taxpayers were spending £2 billion a year on legal aid, compared with just £290 million in France and £272 million in Germany.”

Now this is where I would suggest it starts to go badly wrong. The suggestion is that we spend £2 billion a year on legal aid after these reforms and, therefore, more reform (i.e. cuts) are required. In fact the spend on Legal Aid in 12/13 was £2.2 billion; 13/14 £1.9; 14/15 £1.7; 15/16 £1.5; 16/17 £1.6 and 17/18 £1.6. The MOJ budget has suffered the biggest cuts in Whitehall, down from £10.9bn to £6.4bn.

It is wrong and a little bit lazy to quote £2bn without the further context of what the Legal Aid spend is now when considering whether the legal aid system, or indeed the legal system, requires further reform. And yet the really misleading bit is not in the figures. Or the context. It is in the statement that the £2bn came from a report in 2014 after the complained of cuts had already done their work. Just a moment with Google would tell Mr Clark how misleading this is. LASPO gained Royal Assent in May 2012. Many of the changes in Legal Aid were introduced in April 2013. The system whereby acquitted offenders of certain means footed the cost of their defence was not introduced until January 2014. Inevitably the “savings” take a while to show in the figures. In 2014 the cuts had barely had time to have an impact. It took time. Hence the decline we see in the figures I quote above.

You may well think I have been a little unfair on Mr Clark. Google would tell him that LASPO was in force in May 2012 so the report he quotes could reasonably be said to be after the reforms had begun to take effect. Google may not have told him that the changes were staged over a long timetable. But Google would also have given him access to the report. Even five minutes with the report itself would have told him that the figures in the report were from 2012 at the latest. That is before the legal aid reforms were implemented. Looking it up on Google and reading the source material is not Pullitzer Prize winning journalism.

The bizarre thing is that the piece manages to argue against itself, I suspect unwittingly. The comparison is made with the Legal Aid spend in France and Germany. The piece further argues that reform to our legal system, to make us more like Germany and France, would see our legal aid budget further reduce. This tells us that the system may be a driver of cost.

Let us look more at the 2014 report. It tells us of the whole spend of countries on courts, legal aid and the public prosecution system. The figures show that England and Wales spent €5.4 bn (population 56.6 million), Germany €9.1bn (pop 80.5 million) and France €4bn (65.6 million). The costs for the court system excluding legal aid per inhabitant is €103.5 in Germany but only €42.2 per person in England and Wales. If Herr Klark in Das Spectator has used that figure to suggest reform is needed to the German Court system because we spend so much less than them, well they would be comparing Apfel und Orangen.

Time and time again it is pointed out that comparisons of legal aid spend in an adversarial system to the legal aid spend in an inquisitorial system is almost meaningless, and yet, like HG Wells’s Martians, still they come.

The legal profession is less resistant to change than many would believe. What we are resistant to is the poor and misleading use of evidence. We are resistant to misinformation and the misinformed. Mr Clark is more than welcome to advance his views on reform to the legal system but they need to be based in reality. They need to deal with the real injustices happening week in and week out because of the removal of legal aid and suggest something for the here and now. If he sees the long term answer to be a reform of the judicial system that has to be thought out with cost implications, both financial and societal. And whatever he argues for, he needs to rely upon more by the way of research and less by lazy trope.

The Sorcerer’s Apprentice

Her mother bent forward and placed a kiss on Hood’s cheek.

“You are grown up now, Hood. Time to make your way in the world. And we are so lucky that the Great Wizard, Lord Chan-see-Lore has agreed to take you as his apprentice” her mother said as she straightened up and wiped a solitary tear from her face.

Hood didn’t feel lucky. And at 12, didn’t feel particularly grown up.

“Now, Hood, be brave,” her mother said and steered her towards the heavy wooden door.

If she didn’t feel lucky, or grown up, she definitely did not feel brave. Every child in Gallia Pusillium was scared of Lord Chan-see-Lore. Every child had been frightened into good behaviour by the mere mention of his name. Every child knew the stories of his terrifying magical powers. And how he would use them if he found himself displeased with you. You were lucky if he turned you into a frog. There were rumours, dark rumours, that he had a spell which would instantly transport the target to the untamed badlands. And no one wanted to find themselves in the untamed territory known only as Defra.

As Hood tremulously approached the door it wheezed open as if pushed by an unseen hand. The young girl slowed in her pace and looked back at her mother who bore an unconvincing smile.

“I will see you tonight Hood, good luck and try, please try, not to make him angry….”

This last warning caused Hood to stop. She should turn back. She always made grown ups angry. She couldn’t help but make grown ups angry.

And then her feet were moving. Not by her bidding. Her mind was screaming at her feet to stop. Yet, as surely as if someone held her ankles and yanked each foot forward, she began to move towards the door, her feet slowly rising and falling like an astronaut walking across a moon of treacle.

Now she was across the threshold and the wooden door whooshed shut behind her. The air was still. The only sound was her heartbeat which reverberated around the stone walls of the short corridor which lay ahead of her.

A voice boomed from nowhere. The sound filling every bone in Hood’s quivering body.

“Ah, my new apprentice,” the voice deeply announced, “it is so good to have you here. Such a shame the previous one lasted such a short time. Such a pity he had to go. In a flash.

The last words echoed, bouncing off the walls and repeating just that phrase. “In a flash“. Like a spell. A violent spell.

“Come, come. No need to tarry. We have much to do. Come, come. Pedestrianarius compellebulum

It didn’t matter whether Hood wanted to do as instructed. Her feet responded to the incantation, moving of their own accord, propelling her to the end of the corridor. As she reached an oak and iron door it vanished into thin air and then reappeared behind her as her feet took two enchanted steps forward.

From the narrow confines of the passageway Hood suddenly found herself on a wide ledge in a vast chamber which spiralled above her head and out of sight, and plunged beneath her feet to dark dank depths. The ledge on which she stood was, in fact, a wide step in a staircase which climbed up the wall to her right and descended to her left. As she took in more of her surroundings she could see that the staircase led to the occasional square platform which jutted out from the wall.

Now, moving her own feet, she edged closer to the lip of her stair and surveyed the square platforms as they fanned out below her. On the one nearest to her she could see that it was set up like a sitting room, with a sofa, a chair, a coffee table and a rather chintzy rug. On another were all the accoutrements of a laboratory, tall flasks of bubbling liquid being heated by a dancing flame. On a third platform were a vast array of plants, being fed by a complex watering system and each bathed in light from an invisible source.

And on each Hood could see an intense cacophony of movement. Little figures darting this way and that. Here one turned down the flame as a flask was about to boil over, there one turned off the water as a plant pot filled to the brim.

Hood shook her head. These little figures were not human. Nor animal. They were no creature she had ever seen before. Their bodies were thin and gnarled. Their arms were twig like. They propelled themselves on what looked like grass skirted legs. If she was not very much mistaken, each figure was a walking, working little broom.

“Welcome to my little abode.”

Hood’s attention was dragged back to immediately in front of her as the Wizard appeared, as if by magic (and let’s face it, he was a Wizard, so it was going to be by magic). But it wasn’t just the appearance which was magic. He was suspended in mid air, floating, bobbing like a buoy at sea.

“I am the Great Wizard, Lord Chan-see-Lore,” the floating figure introduced himself, in a manner which was not in the least bit friendly. Not that an introduction was necessary. Every child knew the stories. And every child knew that the Great Wizard also possessed a great jaw line. Like a cliff face over a beach.

“I am Hood, Sir” she managed to say, whilst also bowing.

“Always refer to me as My Lord or Your Great Wizardness,” the floating Wizard commanded, “as you are my servant and I am your master. And I always demand a civil servant. As for you, you are my apprentice, my pupil. So I will call you Acolyte Hood.”

“Yes, Great Wizard,” Acolyte Hood bowed once again.

“And now, follow me,” commanded the Lord Chan-see-Lore as he floated upwards and out of sight.

Hood looked into the void. She wasn’t sure she wanted to follow. She wasn’t sure she wanted to be here, but she certainly did not feel like she wanted to step off the edge of her ledge and plummet below.

The Great Wizard reappeared.

“And, of course, I suggest you take the stairs,” the sorcerer added, before floating aloft again.

Hood took the staircase upwards. One flight. Two flights. Three flights. And on the fourth flight she found herself on one of the square rooms without walls like she had seen earlier. This time it was all bookcases and a desk. With the little broom like creatures dashing hither and thither, dusting books, putting books back on the shelf, getting books from a shelf.

Her new boss was standing behind the desk. Hood double checked. His feet were on the ground this time. His jaw was still jutting.

“Over time, Acolyte Hood, I will teach you magic. You are not here to do the menial tasks, that is why we have the enchanted brooms. They are here to do the fetching and carrying,” as he was saying this, three brooms scuttled towards him, carrying an ornate cloak.

The Wizard took the cloak from the three animated brushes, who instantly became stiff and lifeless, falling to the floor with the percussive sound of wood hitting stone.

Lord Chan-see-Lore swirled the cloak above his head and let it settle around his shoulders.

“Now this morning I have to go out and be out all day. So you have one job to do, Acolyte Hood. One job and one job alone. You see, my little enchanted broomsticks keep everything running smoothly. But the enchantment which turns wood to willing servant is time limited. So they need an occasional reboot.”

With that the Wizard produced a wand from inside the cloak and circled it above his head.

Revival totalis”

All three brooms once more sprouted arms and their bristles parted down the middle to form legs. They immediately went about their previous task cleaning and sorting the library.

“Now, Acolyte Hood, the magic involved in the vivification of my little workers is amongst some of the most complicated magic imaginable, it is magic that you were learn over many years. But today you have to be in charge of making sure that my little helpers keep going….so….”

And with this the Great Wizard moved the wand in a tight figure of eight before his eyes and said the words “automatis enchanter”. The tip of the wand began to emit a low glow.

“What you must do, whilst I am gone is patrol each of my rooms and look for sleeping brooms. When you see one, touch the glowing tip of this wand on any part of them and it will revive the spell.”

Hood began to reach out her hand to take hold of the glowing wand.

“Not so fast,” said the Wizard as he drew the wand back towards himself, “for I have more to tell you. It is vitally important that you carry out this task solemnly. The brooms perform many tasks that not only keep this place working, but keeps it safe. You have to keep them working. But the magic in that wand is so powerful that you must treat it with great care. Touch only the brooms. Do not wave it around. Do you understand?”

Hood nodded.

The Wizard let go of the wand and it floated through the air until it hovered just in front of Hood.

“Take it,” instructed the Wizard.

Hood reached out with her left hand towards the glowing tip.

“NO CHILD!” boomed Lord Chan-see-Lore, “you must hold the other end, do not touch the active end.”

She switched hands and her fingers wrapped around the thin, magical reed. As soon as she touched it she could feel a slight warmth and a barely perceptible tremor passing through the wand.

“Do your task and do it conscientiously. The last apprentice was not conscientious,” as the Wizard was speaking he placed his hand inside his cloak and arced it above his head, sprinkling himself in some glittering dust, “and he turned into a….”

Before the last word was formed the Wizard vanished leaving a wide eyed Hood holding the wand like it was an unexploded bomb.

Suddenly the air crackled and the face of the Wizard appeared inside a spinning orb.

“….great disappointment. And I forgot to say. There are 131 rooms and 393 staircases. Get to work.”

The spinning orb began to fade, the features of the Wizard disappearing. Then it flickered once more into sharp focus.

“One final, final thing. Hold on tight.”

Hood instinctively gripped the wand hard as the orb vanished. And it was a good job she did as her arm was almost yanked clean off when she felt the Wand suddenly pull her to the edge of the room. Her feet scraped along the stone floor, trying to stop her progress to what seemed to be an inevitable death if she were to go over the edge. Just at the moment she was going to let go the shining tip of the wand pointed upwards and it were as if she was being raised by an invisible crane. Her feet left the floor and she soared upwards and out into the middle of the building with no floor or roof in sight.

The wand pulled her upwards and upwards, the air rushing past her face until whatever magical wings the wand had been given pulled her to the right and deposited her on the floor of the uppermost platform.

Hood sank to her knees, the terrifying ride over, the wand still rigidly clutched in her hand. She breathed deeply. Gasping for air. Slowly her heart returned to a mere thunderous beat.

When then prospect of death had rescinded to a recent and terrifying memory, Hood took a look at where she was. It appeared to be a bedroom with an unmade bed, complete with Harry Potter duvet set.

Next to her, on the floor, was a smallish broom. Remembering her task she touched the glowing end of the wand on the broom handle. It would be marvellous if a broom that came alive and lifted itself from a stone floor would then dust itself down. But it doesn’t. It just gets on with its work of making a bed.

Hood found two more inanimate brooms and set them on their way to tidying and cleaning. She then descended three sets of stairs, taking her three quarters of the way around the outer wall of the tall chamber when she came across another platform with a bathroom.

She spent a little time finding four brooms which went to work running the bath and cleaning the shower. She spent a bit more time trying to get a toothbrush and a toilet brush to grow arms before she realised that the wand spell only worked on those brushes that were already enchanted.

And so she went on. And on. Staircase after staircase. Room after room. Broom after broom. A room that housed owls and bats in cages. A room that was lined with scrolls and locked boxes. A room that was almost exactly like her mum’s kitchen.

She spent over an hour and, despite it being an hour of stairs, rooms and brooms, she realised she had only checked twelve rooms. She wasn’t very good at maths. But she was very much behind her target of 131 rooms.

Then she came across a room which had only a tall desk and matching stool. No brooms. No other furniture.

She had been working for over an hour. She probably deserved a little sit down. So she pulled herself up on to the seat of tall stool and found a thin book on the desk. It had a dark brown leather cover with golden letters across the front. The gold was so iridescent, it seemed to glow. In fact, as she looked more closely, it did glow. Five capital letters. “HMCTS“.

The glowing letters were so inviting. They called to her curiosity. She placed the wand on to the table and opened the cover.

Inside, handwritten in ornate writing was the expanded title

Hexes, Magic, Charms, Teleports and Spells”

and the author “Gauke Chan-see-Lore G.W.”

She turned the page. And then the next. Each one contained the title of a spell, a description of what it achieved, an instruction as to how the wand should be waved and the words to be uttered. Spells to make chairs walk, clocks talk. Spells to turn people into frogs and frogs into flowers. Spells to freeze the air and spells to make the rain fall.

One caught her eye. And her imagination. It was called “One Conversation”. And it was a spell to amalgamate things into one. So if you wanted a giant bee, you could cast the spell on the beehive and you would have a thousand bees transformed into one. If you wanted the tallest set of ladders, you just needed some smaller ladders.

This was good. The movement of the wand was described simply as a flick of the wrist. The instruction was to imagine, as you flicked the wand in the direction of the desired object, a bigger version of the object. And then the nearby objects would join together to form a bigger version. Perfect.

Why waste your time with four or five brooms in a room? Having to touch each one. When one big broom only needs one touch. And would be much easier to find. Surely one large broom per room could do the work of more, smaller brooms more efficiently? It would be able to reach further with longer arms. It would not have to do all that running around.

Repeating the words of the incantation, Hood closed the book and grabbed the wand. The Great Wizard would be pleased at this increased efficiency, Hood thought to herself as she made for the staircase.

The next room below was one of the rooms which were covered with shelves and trestle tables with weird and wonderful plants on it. She noticed that some of the plants were bathed in light from some unseen source. Others were being fed water through tubes and pipes that ran here and there.

This room had a lot of brooms. She could see four or five working, with one or two prone where they had fallen.

Hood picked up one of the inanimate brooms and put it on the table before her. She closed her eyes. She imagined the broom, but much bigger. She flicked her wrist and opened her eyes.

Nothing.

The incantation. She had forgotten to say the incantation.

She closed her eyes again. She pictured a single, big broom. She flicked her wrist. And as she did the words “digitalis reformum” left her mouth.

She opened her eyes. Still nothing. She sighed. It hadn’t worked. A good idea. But she wasn’t a magician, just the apprentice.

Remembering her task, she touched the tip of the wand to the broom which returned to the little worker like the others. It stood up on the table.

Before it could move though, one of the working brooms stopped tending to an exotically coloured cactus and ran across the same table and launched itself towards the recently revived broom. It was almost as if it was going to jump into its twig arms. But it didn’t. As they came into contact with each other, each seemed to absorb in the other and there was one broom in their place, twice the size of the original.

The next broom rushed on its brushes and suddenly it was three times the size. Then the next. And the next. The broom was now taller than Hood. It began to work. It barely had to take a step to move between tasks.

Oh, how Hood glowed with pride. On her first day, her first day, she had done magic. Which she had taught herself. She was no disappointment.

She moved towards the staircase, ready to move and improve the next room. This chamber would be a hub of continuous improvement. As her foot hovered on the top step one of the little brooms came running up the stairs, passed her and threw itself at its larger colleague.

Hood shrugged. What was that sound? That scrabbling, scratching sound. The sound that her mother’s handbrush made when she scrubbed the doorstep.

Another broom appeared coming up the stairs. Then another. And another. And then the staircase was alive with little brooms, all running as fast those bristled legs would carry them.

Hood turned back to the single broom. It was growing and growing. It was now too big for the gap between the tables. A whole trestle table was upturned. Pots smashed on the floor. Soil went everywhere. The tubes and the pipes split, water turning the soil to mud.

Hood flicked the wand. “Enough,” she said. “ENOUGH!” she repeated. “ENOUGH!!” she shouted. Nothing happened.

The broom must have been a hundred times the size now. She needed the book of spells. That must have the answer.

She moved to go back up the staircase, only to find that it was a sea of scurrying brooms. She turned back to the room to see that it was a total mess. Everything was destroyed. And the broom was so massive that it was having to stretch its legs across the span of the chamber to find somewhere to stand. And still brooms came to add to its size.

Hood looked over the edge. She could see other platforms. Other of the square rooms which moments earlier had been tended to by a squad of dedicated brooms. She could see one of the laboratory style rooms. Where there had previously been simmering liquids there now appeared to be miniature fireworks going off. And not such miniature fires breaking out.

She could see a bathroom. The brooms must have abandoned their work when midst bath cleaning. Now the water they had been running from the tap had already overflown from the bath and was cascading from the edge of the platform like a waterfall.

The worker broom now filled the void at the heart of the chamber. Hood could no longer see its arms or its brush. Just a section of what would have been the handle, thicker than any tree trunk which had grown naturally.

At least the staircase was now empty and Hood could return to the spell book. She took the steps two or three at a time to find that the desk and stool had been overturned in the commotion. The desk top resting over the edge of the precipice. And the spell book gone.

Tears started to come.

“What have I don? What have I done?” wailed the distraught apprentice.

Hood could hear little explosions reverberating around chamber. Flashes of curious light lit the gloom. There were noises, smells and colours that spoke of chaos.

“What is going on?” boomed a recently familiar voice.

Without warning the Wizard was with her. Not floating. Not a face in a spinning orb. The Wizard, in front of her.

“I…I….,” stammered Hood.

The Wizard seized the wand. He waved it in a complicated pattern whilst hopping on one leg. Words tumbled from is mouth. Incantations too fast for Hood to follow. Sparks flew from the tip of the wand and then tumbled throughout the chamber.

The noises stopped. The light returned to a constant. There was still a mixture of smells. But they no longer told of chaos.

And no massive broom any more. Just the right number of brooms, in the right number of roles.

Hood cowered. She waited to hear a crack of thunder that would take her to Defra.

But nothing. Nothing happened.

The Wizard helped her to her feet.

“You are here to learn. And there was your first lesson. Never meddle in something that you don’t understand. Never will you achieve efficiency by mistaking ease or speed for efficiency. This system has taken years for me to develop. It improves itself, but not by such blunt instruments. It is for you to learn and to work better with what we have, not destroy what we have to make it better.”

The Wizard sort of smiled.

“Now, go home. Come back tomorrow. If you think today was difficult, tomorrow we will embark upon your training in the most difficult of tasks. The spells of security. It is all about tasting hot potions and the search for the three sacred objects – umbrellas, phone chargers and paper clips. These three things are known as the Holy Grayling. And the tricky thing is the three items may be entirely different tomorrow…..”

THE END

With apologies to Goethe, Walt Disney and a little bit to JK Rowling

Autumn Days

As the first days of autumn come tumbling down and the optimism of summer is shaded by the gloom of an oncoming winter we are, yet again, responding to another consultation about the graduated fee scheme.

My first reaction was that I had been consulted previously. And my response was a robust, two fingered retort. I was instantly jaded that this process had to be the subject of a further consultation when it seemed to make more sense that we were simply provided with a new scheme, worked out with those that represent us.

At least the consultation process has, belatedly, allowed some further number crunching. And the proposed £15 million injection would actually be a £8 to 9 million injection if last year’s billing data was used. This has caused outrage. This has prompted some to suggest that the Bar have been totally had over.

I have to confess I don’t share that outrage. Not over that. The reality is that the case mix and the pages contained within those cases is only broadly predictable. In a year’s time we may do a retrospective comparison and find that the new money was in fact £17 million. Or £5 million. That is just the nature of the beast.

That is why I had this to say at the time of the last ballot:

“I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.”

So I wanted to see a consultation that showed lots of worked examples. Tables that showed what we got paid under a scheme that included PPE, what we get paid on the current scheme and what we will get paid with new money in the scheme. That is the only way the practitioner with a mortgage to pay, a family to feed and a life to lead can assess this material.

This consultation is not packaged in this way. And that concerns me. How are we to decide about these things in the abstract? It is the figures in the boxes which really matters, what we are going to get paid for the case. Until I am provided with this information then I am not going to respond positively to this consultation.

But this is not the source of outrage. But that is not to say I am not outraged.

When we were presented with this proposal we were told that things had to move quickly. We were told that the current scheme could not be delayed but that part of the reason to take this offer was to enable an October implementation. That was absolutely fundamental. We would take work remunerated inadequately for a short period of time as a gesture of goodwill, goodwill which we believed was being reciprocated. I have no doubt that this is what the Bar Leadership were being told.

And now there is no prospect of that happening. We are told that it is going to be December, at the earliest, before the new money comes into the scheme. My goodwill was a brown leaf dangling from a horse chestnut tree. It is now already compost. This is not acceptable. This delay undermines the whole process.

The message is simple. We start the ball rolling towards a resumption of “no returns”. The MoJ should be told that this is a consequence of yet another broken promise. And that our goodwill is going to have to be bought again. With less online consultations and more money.

New Judge, Old Court

It is the first day in the full time judicial career of HHJ Darren Leben-Boot (known as Daz to his friends). Whilst the heart and the pension pot is full of joy, the day carries some sadness for the latest Circuit Judge appointment. He will miss the robing room and his colleagues in chambers. And then there is the move. His offer came for an appointment in a far flung Court, one which he had never visited. So life has been uprooted and new beginnings are taking place in new surroundings.

He checks himself in the mirror once again. The bands are brand new and shiny white. The red sash sits on his shoulder. The new wig sits where the old wig sagged. His usher comes to the door to escort him into court. The new Judge feels a little uncomfortable with John the usher punctuating every sentence with “Sir”.

They walk down the corridor which smells a bit like his grandmother’s retirement home. A knock on a door, then “All rise” and he emerges, blinking into the light of the courtroom, his courtroom.

The familiar now has a new focus, a different vantage point. It is only as he takes his seat that he begins to take in his surroundings. Counsel’s row is full of bewigged barristers. But then HHJ Leben-Boot does a double take. The wigs are there, but are perched atop white hard hats. The gowns are there, but each one cloaked in a hi-viz vest. Like Rumpole trying to recreate the Village People.

Counsel stage left gets to her feet, she balances her hard hat and wig combination in a Swiss finishing school lesson in deportment.

“May we welcome Your Honour to the Crown Court sitting at Shambles-upon-the-Wold, and indeed this Circuit,” Counsel begins, in the customary welcome to the newly appointed.

She pauses, and reaches down to the seat next to her.

“And as a gesture of welcome, may we present Your Honour with this, the Circuit Office provided safety wear,” and with that Counsel presents the usher with a neatly folded yellow fluorescent waistcoat and purple hard hat.

Counsel continues; “Your Honour is being provided with head gear colour coded to your office.”

A bemused Judge takes the folded gilet and hat from his usher, whom he now notes is wearing a black safety helmet.

“Thank you Miss Rouen for those kind words, and indeed for the gift. But may I ask one thing….why?” His Honour inquires.

With a sense of timing often lacking in the drama of a courtroom, the question mark at the end of the sentence has barely left the Judge’s mouth when there is a sudden cry of “INCOMING!!!” as a segment of lighting strip detaches from the ceiling and crashes on to Counsel’s row, scattering Juniors left and right.

The new Judge hurriedly dons his hard hat, wedging it on top of his wig.

“I see Your Honour adopts the Devon approach,” Miss Rouen announces, seemingly unperturbed by her colleagues who have now produced hand brushes and dustpans from their red bags and are busying themselves sweeping away the fragments of lighting tube.

“I’m sorry?” the Judge responds.

“We are all very much hat first, wig on top. The Cornwall method. Whereas Your Honour has gone wig then hat, like they do in Devon. It is quite a heated debate,” Miss Rouen explains.

The Judge breathes a deep sigh. A confused sigh. He looks beyond counsel and sees scaffolding at the back of his courtroom, climbing all the way up to the ceiling, a skeleton of scaffolding poles and planks.

“Is this what the scaffolding is for? For workmen to repair the lights?” the Judge addresses his question to anyone prepared to answer.

“No,” Miss Rouen replies, as she is on her feet. “That is simply there to hold the ceiling in place.”

By coincidence there is a new journalist in court. He realises he is sitting beneath the aforementioned scaffolding. Hurriedly, he moves to the seat next to his. The seat immediately gives way beneath him and he rolls towards the court door. Two of his colleagues from the Fourth Estate rush to his aid, two others use all their experience to stifle giggles.

The Judge can feel dignity ebbing away quicker than the life span of a Justice Secretary. He straightens his hard hat (he knows enough already not to chance removing it) and asks that the first case is called on.

“Call Colin Apse,” the Clerk announces.

The usher picks up a nose clip, the sort used by synchronised swimmers, and attaches it to his nose.

“John,” the Judge whispers urgently. “What are you doing?”

“It’sth for de drainsth, thir,” comes the nasal reply.

“Do they smell that bad?” asks the Judge.

The usher reaches beneath his table and slips on a pair of galoshes.

“De do once they thoaked into de carpet, thir. Espethially as we kept de heating on all thummer becuathe we were thcared it wouldn’t sthwitch on again, thir.”

Hard hat, nose clip and galoshes in place, John the usher makes his way to the courtroom door. He sidesteps a rolling member of the press and places his hand on the handle of the door. Which immediately comes off in his hand. He removes his nose clip.

“I am sorry Your Honour, amongst the collapse of the Court Estate, it would appear that it was too much to expect egress to work.”

“Come again?” asks the Judge.

“We are locked in Your Honour,” John the usher replies with a shrug.

The Judge slumps in his seat. He looks at the calendar before him. He takes a pen and crosses through that day’s date.

Only 4,399 days to go to, he thinks to himself, already counting down the days to retirement.

The Reluctant Witness

A view from the North

“What a day I had the other day, I tell you. Had to go to court, I was the prosecution’s star witness, me. Not that I should get ahead of myself, mind.

“It was about that bit of a do I witnessed that time, you remember? Didn’t know where to look, me, so ended up looking right at it and giving a statement to the police and that.

“So I got this letter through saying I had to go and give evidence. The nice police man had told me I would do. But the letter, the letter only goes and tells me I had to go to t’other court. You know, the one three buses away.

“The local one, the one in town, well they’ve only gone and shut it down. Do you know Joan? You do, you do know Joan….. Joan, with the funny looking eyebrows? Got a son…

View original post 1,074 more words

Why I Vote Yes

This blog post have been published on the CBA blog with a number of such blogs of competing opinions. You can see all the blogs here. If you are a criminal barrister it is very important for you to inform yourself and to use your vote.

I was not a part of the committee which assisted in the design of the new fee scheme. I am not a CBA Officer or executive committee member. I do not hold any position on my Circuit. And no, I am not the Secret Barrister.

Now as well as reading like a deeply unimpressive negative version of a CV, the point is that I am not invested in the vote regarding the MoJ’s proposals, save the investment of facing another twenty years of earning my living doing this job. The fact that I am not the Secret Barrister also means that I do not have the additional income of the royalty cheques from a top ten best seller to help me pay my way. It is criminal barristering and criminal barristering alone which pays the bills. Which is why I am anxious that we get this decision right.

Because I do not fill my time by contributing to legal society by being on committees, I spend a lot of time on social media. And it strikes me that there has been a lot on social media about the current proposal which is just wrong.

This 1% increase is just another cut when inflation is 2.5%!!!

It perhaps goes without saying that it is less of a cut than inflation alone but that’s not the point. The point is that it is not just 1% being added to fee levels as of April next year. That misunderstands the proposal. There is an additional 1% but that is on top of new money from outside the AGFS budget that has been used to work out the figures in the new scheme.

I have seen the figures from someone who has lost 30% as a result of these fees….

The document that has been circulating around indicates 5 out of 9 cases that make up the figures relied upon were 10,000 PPE cases. It may well be that many people have a practice which mirrors this profile. There are also many people who do not. It does not represent that the new scheme post 1/4 means a 30% cut on all fees. And the information provided in that document is the unaltered fee scheme. There is new money to ameliorate these reductions. But that does not mean the new money is to reflect an acceptance that there are cuts to the overall budget. These paper heavy junior cases were cut to rob Petra to pay Paula. Now Petra is getting some or all of her money back

The first increase isn’t new money, this scheme represents massive cuts, so giving 5% back doesn’t replace the 30% I have lost.

There are a range of fees under the new scheme which suffer swingeing cuts. But there are also plenty of fees, generally speaking either in the work of the more junior barrister, certain sex cases or Silks, where there have been significant fee increases. What you do not tend to find is barristers who take to Twitter to publish a range of cases which have seen a fee increase under the new scheme.

No one ever takes the first offer….

I could see that there may be some logic in that if this was the first offer. But it plainly is not. The MoJ did not call the CBA up out of the blue and say “here it is, take it or leave it”. This has been the culmination of weeks of work. But the other thing is, in this context, plenty of people do take the first offer. The context being a negotiation about rates of remuneration. So, once the Trade Union activists have negotiated and negotiated they will take the package they have negotiated to their members. And, often, the members will vote on that offer and accept it. The Trade Union negotiators have not spent all that time eating sandwiches and staring at the management. They have been negotiating. Offer and counter offer. That is what has happened here. It definitely is not the first offer. There is a risk it is the last offer.

This offer (whether it be 1% or 2% or 5%) is derisory and an insult…

I have previously used the fact that we have had a real term cut year in and year out for 20 years in my argument as to why we are right to take action. I did not for one minute think I was going to get it all back in one go. Or ever. I have bemoaned the fact that we have been cut and cut again. But I do not think we can now win fights we lost twenty years ago, fifteen years ago or five years ago. In relation to public sector remuneration, this increased offer is not derisory. We should be very wary about framing it so. And particularly when our colleagues in the solicitor profession have just suffered another cut.

I will not just criticise what I see as “myths” that have built up around the negotiations and the proposal but I will deal with the positive case as to why I will vote “yes”. Before I do, however, I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.

I vote “yes” because I believe this is the best we are going to achieve at this moment. I was very vocal about the fact we should not have accepted the deal offered by the MoJ when we first operated a “no returns” policy four years ago. I foresaw that this would lead to all sorts of problems. I thought this was the only way we could get more. I was wrong. I did not listen to the people in the room. They were right.

That does not mean I have blind faith. But it did teach me a lesson. In this instance Angela Rafferty QC and the CBA have been canny enough to call for action when others were saying we should just adopt the new scheme. They were canny enough to know that they needed militant action to achieve a result. They knew what it took to get new money when everyone else was saying there was no money. They have also been astute enough to gather together this particularly argumentative group of wigged cats and herd a significant enough number of us in the right direction. They have called for staged action and have added to that a bit of political fancy footwork. All of that has shown good judgement and astute tactics. And now ARQC tells us they have achieved all they can. Against that backdrop do we bet against that judgement? I don’t. Because that is a bet which, if we lose, we lose heavily.

That is not just a call to listen to your elders. That is not just me tamely following what the Silks tell us. It is me trusting the judgement of someone that has proven themselves to be deserving of that trust. I am not following instinct. I am following the evidence.

The proposal reflects the best that can be achieved for the whole of the Bar, doing justice between competing interests of practice type, specialisms, level of call and geographical area. There will still be fee anomalies. They happen under any scheme which pays for anything other than each hour reasonably worked, they happen under the scheme with the PPE proxy. With the new scheme we have certainty of the level of fee when the invitation to the digital system lands. If you decide the fee is not adequate, do not take the case.

If we had been told twelve months ago that we were going to be paid more for sentences, that we were gong to get a refresher for our second daily attendance and that refreshers did not halve after 40 days, we would have been pretty pleased. If we were also told that the overall budget available was going up, we would have been over the moon. If we were told that we were going to get our first ever planned increase, we would have thrown a street party in the Temple. There would not have been action. There would not have been a poll. The fact that the money for most of that was coming from within the scheme itself, that the money was being taken from other cases to fund the improvements, caused us to have to take action. We have to cease the action for now to assess whether that has been put right satisfactorily. We have missed out on the street party by the method of how we got here, but we are not at a wake.

The one thing which shines out from this is that we have a change in the direction of travel. I have been a barrister for 25 years. I have been working, campaigning and fighting for adequate remuneration for the last 15 years. Never have we ever got even close to a rise in remuneration. And now we have. That is not derisory. That is a victory. It does not give us everything, far from it. But it is a victory the likes of which we have never ever seen before. It is unique. Now we should not take any old offer, but before we reject an offer as derisory we have to set it in that context. It is only derisory if we let it be the only positive for the next 20 years. Each time we have fought, we have won. So we come back again, a year from now, and we negotiate with the might of action at our elbows. We are not going to get the last 20 years back in one go, nor are we going to sit back and say that 1% will do for the next 20.

I say to you all now that you should only vote for future candidates for the role of vice-chair and then chair of the CBA if they include a manifesto pledge to negotiate a rise in fees in their two year tenure, to be backed up with action in the event of refusal by the Government. The rise should become the norm, not the exception. To achieve that the Government have to fear our collective power, with no evidence of its failure. Accepting the proposal is not a failure.

As soon as this action is over we should turn our attention to prosecution fees. We should begin a real, proactive plan for the whole of the criminal justice system. Accepting the proposal allows us the time to do this and do this properly.

And I stress again. If the figures in the boxes of this revised scheme turn out to be wrong, if we do not see the improvements that need to be made, then the Government already know our answer – if the figures are not right, we have the appetite for the fight.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.